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INTELLECTUAL PROPERTY RIGHTS

NATIONAL LEGISLATION - CANADA

Bill C-32: An Act to amend the Copyright Act


 

Computer Programs
Permitted acts

 

30.6 It is not an infringement of copyright in a computer program for a person who owns a copy of the computer program that is authorized by the owner of the copyright to

 

 

    (a) make a single reproduction of the copy by adapting, modifying or converting the computer program or translating it into another computer language if the person proves that the reproduced copy is

 

      (i) essential for the compatibility of the computer program with a particular computer,

 

      (ii) solely for the person's own use, and

 

      (iii) destroyed immediately after the person ceases to be the owner of the copy; or

 

    (b) make a single reproduction for backup purposes of the copy or of a reproduced copy referred to in paragraph (a) if the person proves that the reproduction for backup purposes is destroyed immediately when the person ceases to be the owner of the copy of the computer program.

 

Incidental Inclusion
Incidental use

 

30.7 It is not an infringement of copyright to incidentally and not deliberately

 

 

    (a) include a work or other subject-matter in another work or other subject-matter; or

 

    (b) do any act in relation to a work or other subject-matter that is incidentally and not deliberately included in another work or other subject-matter.

 

Ephemeral Recordings
Ephemeral recordings

 

30.8 (1) It is not an infringement of copyright for a programming undertaking to fix or reproduce in accordance with this section a performer's performance or work, other than a cinematographic work, that is performed live or a sound recording that is performed at the same time as the performer's performance or work, if the undertaking

 

 

    (a) is authorized to communicate the performer's performance, work or sound recording to the public by telecommunication;

 

    (b) makes the fixation or the reproduction itself, for its own broadcasts;

 

    (c) does not synchronize the fixation or reproduction with all or part of another recording, performer's performance or work; and

 

    (d) does not cause the fixation or reproduction to be used in an advertisement intended to sell or promote, as the case may be, a product, service, cause or institution.
Record keeping

 

(2) The programming undertaking must record the dates of the making and destruction of all fixations and reproductions and any other prescribed information about the fixation or reproduction, and keep the record current.

 

Right of access by copyright owners

 

(3) The programming undertaking must make the record referred to in subsection (2) available to owners of copyright in the works, sound recordings or performer's performances, or their representatives, within twenty-four hours after receiving a request.

 

Destruction

 

(4) The programming undertaking must destroy the fixation or reproduction within thirty days after making it, unless

 

 

    (a) the copyright owner authorizes its retention; or

 

    (b) it is deposited in an archive, in accordance with subsection (6).
Royalties

 

(5) Where the copyright owner authorizes the fixation or reproduction to be retained after the thirty days, the programming undertaking must pay any applicable royalty.

 

Archive

 

(6) Where the programming undertaking considers a fixation or reproduction to be of an exceptional documentary character, the undertaking may, with the consent of an official archive, deposit it in the official archive and must notify the copyright owner, within thirty days, of the deposit of the fixation or reproduction.

 

Definition of ''official archive''

 

(7) In subsection (6), ''official archive'' means the National Archives of Canada or any archive established under the law of a province for the preservation of the official archives of the province.

 

Application

 

(8) This section does not apply where a licence is available from a collective society to make the fixation or reproduction of the performer's performance, work or sound recording.

 

Telecommu-
nications by networks

 

(9) A broadcasting undertaking, as defined in the Broadcasting Act, may make a single reproduction of a fixation or reproduction made by a programming undertaking and communicate it to the public by telecommunication, within the period referred to in subsection (4), if the broadcasting undertaking meets the conditions set out in subsection (1) and is part of a prescribed network that includes the programming undertaking.

 

Limitations

 

(10) The reproduction and communication to the public by telecommunication must be made

 

 

    (a) in accordance with subsections (2) to (6); and

 

    (b) within thirty days after the day on which the programming undertaking made the fixation or reproduction.
Definition of ''programming undertaking''

 

(11) In this section, ''programming undertaking'' means

 

 

    (a) a programming undertaking as defined in the Broadcasting Act;

 

    (b) a programming undertaking described in paragraph (a) that originates programs within a network, as defined in the Broadcasting Act; or

 

    (c) a distribution undertaking as defined in the Broadcasting Act, in respect of the programs that it originates.

 

The undertaking must hold a broadcasting licence issued by the Canadian Radio-television and Telecommunications Commission under the Broadcasting Act.

 

Pre-recorded recordings

 

30.9 (1) It is not an infringement of copyright for a broadcasting undertaking to reproduce in accordance with this section a sound recording, or a performer's performance or work that is embodied in a sound recording, solely for the purpose of transferring it to a format appropriate for broadcasting, if the undertaking

 

 

    (a) owns the copy of the sound recording, performer's performance or work and that copy is authorized by the owner of the copyright;

 

    (b) is authorized to communicate the sound recording, performer's performance or work to the public by telecommunication;

 

    (c) makes the reproduction itself, for its own broadcasts;

 

    (d) does not synchronize the reproduction with all or part of another recording, performer's performance or work; and

 

    (e) does not cause the reproduction to be used in an advertisement intended to sell or promote, as the case may be, a product, service, cause or institution.
Record keeping

 

(2) The broadcasting undertaking must record the dates of the making and destruction of all reproductions and any other prescribed information about the reproduction, and keep the record current.

 

Right of access by copyright owners

 

(3) The broadcasting undertaking must make the record referred to in subsection (2) available to owners of copyright in the sound recordings, performer's performances or works, or their representatives, within twenty-four hours after receiving a request.

 

Destruction

 

(4) The broadcasting undertaking must destroy the reproduction when it no longer possesses the sound recording or performer's performance or work embodied in the sound recording, or at the latest within thirty days after making the reproduction, unless the copyright owner authorizes the reproduction to be retained.

 

Royalty

 

(5) If the copyright owner authorizes the reproduction to be retained, the broadcasting undertaking must pay any applicable royalty.

 

Application

 

(6) This section does not apply if a licence is available from a collective society to reproduce the sound recording, performer's performance or work.

 

Definition of ''broadcasting undertaking''

 

(7) In this section, ''broadcasting undertaking'' means a broadcasting undertaking as defined in the Broadcasting Act that holds a broadcasting licence issued by the Canadian Radio-television and Telecommunications Commission under that Act.

 

 

(2) Section 30 of the Act, as enacted by subsection (1) of this section, does not apply in respect of collections referred to in section 30 that are published before the coming into force of section 30. Such collections continue to be governed by paragraph 27(2)(d) of the Act as it read before the coming into force of section 15 of this Act.

 

 

19. The Act is amended by adding the following after section 31:

 

 

Persons with Perceptual Disabilities
Reproduction in alternate format

 

32. (1) It is not an infringement of copyright for a person, at the request of a person with a perceptual disability, or for a non-profit organization acting for his or her benefit, to

 

 

    (a) make a copy or sound recording of a literary, musical, artistic or dramatic work, other than a cinematographic work, in a format specially designed for persons with a perceptual disability;

 

    (b) translate, adapt or reproduce in sign language a literary or dramatic work, other than a cinematographic work, in a format specially designed for persons with a perceptual disability; or

 

    (c) perform in public a literary or dramatic work, other than a cinematographic work, in sign language, either live or in a format specially designed for persons with a perceptual disability.
Limitation

 

(2) Subsection (1) does not authorize the making of a large print book.

 

Limitation

 

(3) Subsection (1) does not apply where the work or sound recording is commercially available in a format specially designed to meet the needs of any person referred to in that subsection, within the meaning of paragraph (a) of the definition ''commercially available''.

 

 

Statutory Obligations

No infringement

 

32.1 (1) It is not an infringement of copyright for any person

 

 

    (a) to disclose, pursuant to the Access to Information Act, a record within the meaning of that Act, or to disclose, pursuant to any like Act of the legislature of a province, like material;

 

    (b) to disclose, pursuant to the Privacy Act, personal information within the meaning of that Act, or to disclose, pursuant to any like Act of the legislature of a province, like information;

 

    (c) to make a copy of an object referred to in section 14 of the Cultural Property Export and Import Act, for deposit in an institution pursuant to a direction under that section; and

 

    (d) to make a fixation or copy of a work or other subject-matter in order to comply with the Broadcasting Act or any rule, regulation or other instrument made under it.
Limitation

 

(2) Nothing in paragraph (1)(a) or (b) authorizes a person to whom a record or information is disclosed to do anything that, by this Act, only the owner of the copyright in the record, personal information or like information, as the case may be, has a right to do.

 

Destruction of fixation or copy

 

(3) Unless the Broadcasting Act otherwise provides, a person who makes a fixation or copy under paragraph (1)(d) shall destroy it immediately on the expiration of the period for which it must be kept pursuant to that Act, rule, regulation or other instrument.

 

 

Miscellaneous
Permitted acts

 

32.2 (1) It is not an infringement of copyright

 

 

    (a) for an author of an artistic work who is not the owner of the copyright in the work to use any mould, cast, sketch, plan, model or study made by the author for the purpose of the work, if the author does not thereby repeat or imitate the main design of the work;

 

    (b) for any person to reproduce, in a painting, drawing, engraving, photograph or cinematographic work

 

      (i) an architectural work, provided the copy is not in the nature of an architectural drawing or plan, or

 

      (ii) a sculpture or work of artistic craftsmanship or a cast or model of a sculpture or work of artistic craftsmanship, that is permanently situated in a public place or building;

 

    (c) for any person to make or publish, for the purposes of news reporting or news summary, a report of a lecture given in public, unless the report is prohibited by conspicuous written or printed notice affixed before and maintained during the lecture at or about the main entrance of the building in which the lecture is given, and, except while the building is being used for public worship, in a position near the lecturer;

 

    (d) for any person to read or recite in public a reasonable extract from a published work; or

 

    (e) for any person to make or publish, for the purposes of news reporting or news summary, a report of an address of a political nature given at a public meeting.
Further permitted acts

 

(2) It is not an infringement of copyright for a person to do any of the following acts without motive of gain at any agricultural or agricultural-industrial exhibition or fair that receives a grant from or is held by its directors under federal, provincial or municipal authority:

 

 

    (a) the live performance in public of a musical work;

 

    (b) the performance in public of a sound recording embodying a musical work or a performer's performance of a musical work; or

 

    (c) the performance in public of a communication signal carrying

 

      (i) the live performance in public of a musical work, or

 

      (ii) a sound recording embodying a musical work or a performer's performance of a musical work.
Further permitted acts

 

(3) No religious organization or institution, educational institution and no charitable or fraternal organization shall be held liable to pay any compensation for doing any of the following acts in furtherance of a religious, educational or charitable object:

 

 

    (a) the live performance in public of a musical work;

 

    (b) the performance in public of a sound recording embodying a musical work or a performer's performance of a musical work; or

 

    (c) the performance in public of a communication signal carrying

 

      (i) the live performance in public of a musical work, or

 

      (ii) a sound recording embodying a musical work or a performer's performance of a musical work.

 

INTERPRETATION
No right to equitable remuneration

 

32.3 For the purposes of sections 29 to 32.2, an act that does not infringe copyright does not give rise to a right to remuneration conferred by section 19.

 

 

COMPENSATION FOR ACTS DONE BEFORE RECOGNITION OF COPYRIGHT OF PERFORMERS AND BROADCASTERS
Certain rights and interests protected

 

32.4 (1) Notwithstanding section 27, where a person has, before the later of January 1, 1996 and the day on which a country becomes a WTO member, incurred an expenditure or liability in connection with, or in preparation for, the doing of an act that would have infringed copyright under section 26 commencing on the later of those days, had that country been a WTO member, any right or interest of that person that

 

 

    (a) arises from or in connection with the doing of that act, and

 

    (b) is subsisting and valuable on the later of those days

 

is not prejudiced or diminished by reason only that that country has become a WTO member, except as provided by an order of the Board made under subsection 78(3).

 

Compensation (2) Notwithstanding subsection (1), a person's right or interest that is protected by that subsection terminates if and when the owner of the copyright pays that person such compensation as is agreed to between the parties or, failing agreement, as is determined by the Board in accordance with section 78.

 

Limitation

 

(3) Nothing in subsections (1) and (2) affects any right of a performer available in law or equity.

 

Certain rights and interests protected

 

32.5 (1) Notwithstanding section 27, where a person has, before the later of the coming into force of Part II and the day on which a country becomes a Rome Convention country, incurred an expenditure or liability in connection with, or in preparation for, the doing of an act that would have infringed copyright under section 15 or 21 commencing on the later of those days, had Part II been in force or had that country been a Rome Convention country, any right or interest of that person that

 

 

    (a) arises from or in connection with the doing of that act, and

 

    (b) is subsisting and valuable on the later of those days

 

is not prejudiced or diminished by reason only that Part II has come into force or that the country has become a Rome Convention country, except as provided by an order of the Board made under subsection 78(3).

 

Compensation (2) Notwithstanding subsection (1), a person's right or interest that is protected by that subsection terminates if and when the owner of the copyright pays that person such compensation as is agreed to between the parties or, failing agreement, as is determined by the Board in accordance with section 78.

 

Limitation

 

(3) Nothing in subsections (1) and (2) affects any right of a performer available in law or equity.

 

 

COMPENSATION FOR ACTS DONE BEFORE RECOGNITION OF COPYRIGHT OR MORAL RIGHTS

Certain rights and interests protected

 

33. (1) Notwithstanding subsections 27(1), (2) and (4) and sections 27.1, 28.1 and 28.2, where a person has, before the later of January 1, 1996 and the day on which a country becomes a treaty country, incurred an expenditure or liability in connection with, or in preparation for, the doing of an act that would have infringed a copyright owner's copyright or an author's moral rights had that country been a treaty country, any right or interest of that person that

 

 

    (a) arises from or in connection with the doing of that act, and

 

    (b) is subsisting and valuable on the latest of those days

 

is not prejudiced or diminished by reason only that that country has become a treaty country, except as provided by an order of the Board made under subsection 78(3).

 

Compensation (2) Notwithstanding subsection (1), a person's right or interest that is protected by that subsection terminates, as against the copyright owner or author, if and when that copyright owner or the author, as the case may be, pays that person such compensation as is agreed to between the parties or, failing agreement, as is determined by the Board in accordance with section 78.

 

Continue with Bill C-32: PART IV: Remedies

 

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